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tv   [untitled]    September 29, 2012 10:30am-11:00am PDT

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determination. by mixing all the terms up we lose exattitude that will come in handy at some point. and also by declaiming a complaint by order of determination, you are treating a citizen complaint the same way as the careful deliberations of the sunshine task force. it doesn't make sense to me. and keeping the word complaint in this. because that's how the document was drafted and it will disrupt some paragraphs. i don't see that as a sufficiently strong argument to keep them mixed together. my second point is where, the
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sunshine task force is a mutual review body. and to connect them with the complainant or respondent compromises their position. they should not represent anyone but their conclusion. thank you. >> i have three points that come to my mind. number one is the whole issue again of complaint referral. i have been at the sunshine hearings, and all of you need to go and pay attention. it's so simple. first of all we need a sunshine task force that you can visit like david campose did and see
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how they work. what goes on there is a trial by merits. if you take a judicial procedure of a judge on trial of merits. and they refer back to the judge'sed -- order because they heard the hearing, and that's what it's to do. to give the sunshine ordinance some teeth and hoping to have a difference between the commission and the task force. for instance, this procedure is 12 years in coming. we have waited for 12 years for the ethics commission to find a procedural than to throw in the trash can, that has gone on again and again.
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and we get to the issue of teeth. and the grand jury on this issue of f-b, where it says that the respondents to the department commission board is to pay a penalty up to $10,000. the idea is that money was to come out that department's budget. and that's something that the san francisco jury felt was a good idea. and as you know every dollar counts. and these are big notes. i would like to get a couple of $5,000 notes. at no point is any money given to the person that actually suffered the damage. that went through months and years of grievance of dealing with city people. well i am not going to review mrs. gomez's case. wow, incredible. and then i have this concept
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since we are dealing with teeth. let's move from money to removal from office. because it says in 6734, willful failure shall be official misconduct. in sunshine case 11048. we have supervisors chui, and moran that have committed misconduct. it's coming before you guys. and are they going to be removed from office? because that's what teeth is. we would like to see that. thank you. >> hope johnson again. i will try not to repeat. there is a lot of stuff there. i agree with your decision to delete the assigning hearing officer. because there would be a question about how you would
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then vote on it. on item 2-c, i think that we do still have some concerns that the executive director should not be re adjudicating with these behind-the-scenes with the similar memos that we received. that you guys don't vote on but get posted as dismisals. without a vote. we want to be sure that doesn't get lost in the interpretation. and d, i don't agree that neither the respondent or complainant should be able to have a representative. we found in the task force hearings that they sent a representative that said, i don't know. they didn't send knowledgeable representatives. and also the city attorney's office is not allowed under the sunshine ordinance to represent
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the respondent or hold advice of the documents. i agree with a member of the public who said that it would be compromising and set up an adversarial role of the commission and to have a member of the task force to represent the complainant. i agree with your decion to eliminate in section "e" the points that mitigate their circumstances surrounding whether or not they turned over documents or violated the sunshine ordinance. in "f," under "b," the last sentence, that you will not take further action on a complaint. i would like to see something in this about following up on the status of a recommendation such as you are going to consider in the jewelle gomez case, rather
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than just letting it end. and i understand that other people have spoken to this, i want to put in my support of not weighing too heavily on re adjudicating, because it may become sort of a slippery slope. where the ethics commission begins to take on the role of the appearance of overturning task force findings. that it doesn't have the authority to do. keep that in mind in the hybrid process. thank you. >> david pellpal. yes, there is a lot here. chapter 2, section 1, sub"a." filing complaints, perhaps that's not the best but hearing referrals, something of that
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effect. i am not sure in hearing and thinking through this, where the show-cause hearing is a quasi adjudicative matter or legislative hearing of some aspect. i am trying to think through what due process rights a respondent would have at this type of show-cause hearing. and that may turn in part on whether there a financial penalty or finding. and whether that attaches to them as an individual or department or agency. and what sort of rights are implicated there. i am happening through that. on sub"b" hearing and tweak of scheduled pursuant to the requirements of brown act and maybe not 67.7 and may change in
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the future. and that in accordance elsewhere. i appreciate not having the hearing officer. i don't know if you resolved whether it could be a single member of the commission holding the hearing. or the entire commission. regardless i heard what staff had to say, and not clear whether you changed that language. >> do you have an opinion? i don't think we have decided? >> i think if the commission deliberates later on on the merits in any event. you probably should hold it for the entire commission. you can set that within a week, as commissioner renne suggested. but i don't think you need to hold that within a week. it may require scheduling and the rights of respondent. if you hear it anyway, and why
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sub it out and have it back and more comment and hearings. just deal with it. in general in this section, it largely turns on documents. [buzzer] and i note this is not 21-d or 21-e matter in the ordinance. it's a referral that is 30-c, when the task force has found anyone has violated any decision or act. it's a finding or mediation or something. but i don't know that taking this together that this body of law gives you the authority to order disclosure of records. or that you have the power to order anything that it's limited to record, and more broadly enforcement. let me conclude with a couple other things. >> you it turn it back on.
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>> the votes of three commissioners are required. what happens when you only have four commissioners present? does that mean that the matter dies? it doesn't address that and has a presumption built in there somewhere. i am not sure if that makes sense. and more importantly in terms of the administrative orders. nothing in here suggested that the commission could make a finding that a violation is willful. and that's to me the most important thing in 3764. if a commission finds that an act is willful, it shall be deemed so. >> i don't think we have gotten there. >> no? >> you are talking about willful violations that are -- you are talking about willful violations based on findings that are made
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by the task force. okay. >> or made by the commission. in any event, a finding if you look at 64.34, if the commission determines after the task force has done what they have done. that an act or omission was willful, that official misconduct attachs to that. and whatever flows next out of that. but i don't see that written in sub f, orders and penalties that. the commission has a right to make such a finding of willful violation. i think that's critical. >> thank you. >> thank you. >> it's hard to look at each of these various decision points.
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globally it's our hearing that a show-cause hearing can't be a do-over. it can't be a repeat of what the task force did. which was to hold several hearings entering an order. the respondent was given every opportunity to prove that an exception applied and it didn't apply. public records are presumably disclosed. and that is established. that was done before the task force. if you want to do it all over again, which is what this will entail. why should the task force bother in the first case? because it spent a lot of time and effort to get this matter to the point where the complainant was supposed to get either his records or some other matter
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taken care of. and it comes to you and you do it all over again. i want to make another point. i didn't pick up whether the advice of the city attorney is a defense. it can't be because under the ordinance the city attorney cannot advice any city employee, assist any city employee in -- i could read the language. shall not act as legal for any city employee having custody of any public record for purposes of denying access to the public. but if you want to keep it, it becomes a get-out-of-jail free card. the other thing that is important. i think that the full commission should hear these cases.
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i think that the public is entitled to that. and the notion of a hearing officer who is unknown and has no real accountability would be involved is contrary to the spirit of this. >> can i ask a question about that. so in the situation where because of timing issues. that's necessarily going to cause potentially are in delay between sunshine task force finding and the commission finding. you think it's worth it for the full commission? >> mr. shaw's case has been sitting over a year. >> could you answer my question, i am curious. we will address mr. shaw's issue tonight. >> okay, i think it's worth the wait to get the full commission to hear it. >> thank you.
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>> and the other thing is these violations are not alleged. they actually have been found to exist. and that's [buzzer] what the order meant. >> i am dana buller. as a kind of outsider to these proceedings. i need to say that the absence of the original task force document that says, i get nervous talking. so i don't make sense sometimes. let me back up.
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i have a draft version of what a lot of articles. and then there is this other one that isn't marked draft. so i had to figure out as a naive observer, where there changes between the draft and this document? and i have concluded oh, well, this document is what is already in existence. but then i realized that oh, no, there isn't a copy of the task force regulations, the original. so these two as far as i can figure out the same thing. so i pointed out because it makes it impossible for me to understand as a member of the
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public what you are doing here. these are not -- i don't know if these are new regulations or slightly changed versions of the old? i can't think of the word, the governing document for, running the task force. so i don't have access to that. so i can't make sense out of your intended changes because i don't know what is being changed. i don't know what it might be a change from. lacking any response from anyone, i don't know if you understood what the predicament is and why i am concerned. i got one nodding head. >> these are the ethic
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commission's regulations. the task force, there have been many iterations. we are trying and working with the task force for some time to come up with regulations that we feel meet our charter requirements. the task force has had views about how we should handle these things based on their interpretation of the charter. and we are presently trying to bridge the gap. and it hasn't been an easy process. it's been a difficult process. and this is the closest we have gotten. >> i understand that, i don't know what the regulations are that are existence from the documents that i have been provided. and i don't know if you realized if i made that clear. as a member of the public i can't know what these are changes to. >> these --
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>> if you take the changes of what they look like and put in the changes. one is step by step by the
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changes and the other two will tell you what it would like like and the underlying going in and out. if we did all the things that were suggested in this memo. >> yeah, i didn't follow the second document you are referring to. i am not clear. no that was the third. >> the second one is the one that says attachment "b" at the top. >> i don't have that. >> it should be available on the table. >> will that tell me what the standing regulations are? >> yes. >> thank you. >> what is that? pardon me? >> thank you, i think that the answer that mrs. buller wanted. there are no regulations at the
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moment. and this is an attempt to respond to the fact that there is no enforcement for the last 17 years. it has been a number of years while on the task force, and i was at the hearing a year ago august. and from that i think there are clarifications that need to be made. first of all with the exceptions of complaints and of the elected officials and department heads. the reason that doesn't track, in 3764, department heads and other managerial employees. and the idea is that if you remember your high school gramm grammar, it's a nonrestrictive
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clause. and even though with respect to official misconduct, it defines department heads to include other managerial employees. it does not restrict your hearing process. which should be reflected here and in the next chapter, chapter 3. with respect to the representation of these complaints. i have always felt very strongly, it's less clear in the current task force. when a citizen brings a complaint to the task force, the citizen has done his part. and from that point it's up to the task force to advice departments, city employees on the enforcement of the law. and if that means referring it
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somewhere else, the task force itself is the interested party at that point. it's not up to the complainant to turn this into a steeple chase or obstacle course. and block the complainant at every instance. because the entire city has interest in enforcement of that law. [buzzer] it's that operation with the interest with respect of the findings. you have qualifications here whether a person relied in good faith or whether there was advice. that might be referral with relevant with respect to enforcement or fines or something. but the actual fining of the violation, that's irrelevant. [buzzer] it's a violation.
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>> thank you. >> could i ask a question. so you would have the task force be the spokesperson for its decision before us and have the responde respondent -- when we give the respondent the opportunity to have it over turned and not act on it. but have the task force the spokesperson and not the complainant? >> if the complainant does not wish to show up. then the task force itself should be able to show up. make sure that the issue was pursued. >> not as the representative of
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the issue. >> speaking for the task force and acting for the order of determination. >> thank you. >> okay, a couple of things have been become clear to me through this process. first of all, i have felt and still feel that the staff did a very nice job with these. because this is a difficult issue. and we have been trying very hard over the course of quite a while to come up with regulations that we think work, that comport with our view and responsibilities. and take in part what the task force feels is necessary. i think that the staff has done a great job with that. and i appreciate that. that said, when you are doing
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regulations. it's a complicated process. you hear from the public. you learn things that may alter how one may want, how one may want these regulations to look. so i think we should go back and rework parts of this. i am not certain that it makes sense at this point to pass what we have and amend. i think we should work a little more and revise. so we have something that takes into account some of the issues that have been raised. so my recommendation is that the commissioners, we go through the rest just for the commissioners to identify specific areas of concerns they had. because we can't share them unless we do them at this meeting. so i think that would be helpful. >> i am fine with that process.
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but we could convey them to the staff. that they are issues that we would raise. so they can anticipate and prepare them if you are thinking we would do this without discussion. if you want to have discussion among us. >> i am not sure how much change.5รก
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